I hear Caetano (and Yee) crying,
“will I ever grow?”
Will there be grants for Wearry (and Murr)?
I do not know.
And I think to myself
what a wonderful Court.
Yes I think to myself
what a wonderful Court.

I guess I never realized how short that song was. We still have a lot to cover. Bing, will you tell us about the new relists this week?

I’m dreaming of the new relists,
just like the ones that used to reign.
With False Claims Act bliss
and lawyers wish
to post pro-Israel ads on some train.

I’m dreaming of AT&T v. Heath
with every federal form I write.
If the phone company wins this fight
you’ll have to plead a (specific) false claim to be right.

The last one-time relist to get a grant was Ross v. Blake, 15-339, which asks whether a prisoner who thought he exhausted his administrative remedies under the Prison Litigation Reform Act can be excused from his obligation to actually do so. Sounds like respondents’ counsel have their work cut out for them. Meanwhile, Sheriff v. Gillie, 15-338, was granted after a whopping two relists. It asks whether outside “special counsel” hired by the state to collect debts are state officers under the Fair Debt Collection Practices Act and whether it is misleading for them to use attorney general letterhead to convey that they are collecting debts owed to the state on behalf of the state’s AG.

If you needed any further proof that the Justices are just trolling us, you need look no further than United States v. Bryant, 15-420. In aworld of Friday grants in relisted cases, this case was the rare Monday grant without a relist, just to screw with all the people who began the week saying (reasonably enough), “no additional grantsare expected.” The case asks whether the use of uncounseled misdemeanor convictions in tribal courts count towards a federal crime with a predicate-offense element. This is the second consecutive year that the Court granted a single virgin case during the last conference in December. In this instance, the Solicitor General’s involvement may have reassured the Court that no vehicle issues would pop up, making the quality-check relist unnecessary; last year, the case was just incredibly straightforward.

Our relist champions will be leaving us. White v. Wheeler, 14-1372, won a summary reversal, with the Court giving the Sixth Circuit yet another (unwanted) notch in its belt by holding that a federal court must be deferential and avoid second-guessing a state court regarding the removal of a juror in a capital murder trial. No such luck for petitioner in its companion case, Wheeler v. White, 14-10376, in which a prisoner argued that the Sixth Circuit erred regarding certain evidentiary matters; cert. was denied in that case without comment.

The only other denied relist was the once-relisted City of Los Angeles v. Contreras, 15-58, which asked whether a police officer who used deadly force to prevent a suspect’s escape was entitled to qualified immunity.

Our remaining returning relists will be sticking around for the holidays. Or at least it appears they will: As this is being posted, the Court has not yet updated its online docket, so we are inferring a relist from the absence of further action. Caetano v. Massachusetts, 14-10078, earned its fourth relist. However, the record only arrived on Monday, so does that (presumed) relist even count? The case asks whether the Second Amendment includes stun guns in its definition of “arms.” Taylor v. Yee, 15-169, which aims to get you all your stuff back by challenging the constitutionality of the California Unclaimed Property Law, was also relisted for a fourth time. Wearry v. Cain, 14-10008, a capital case out of Louisiana, is our third fourth relist. It asks (1) whether the Louisiana courts erred in failing to find that the state’s failure to disclose exculpatory evidence violated its obligation under Brady v. Maryland and that this failure prejudiced the defense; and (2) whether the Louisiana courts erred in failing to find that Michael Wearry’s attorney provided ineffective representation at the guilt phase of trial under Strickland v. Washington. Trailing just behind these new leaders is Murr v. Wisconsin, 15-214, which picked up its third relist. This case asks whether two legally distinct but commonly owned contiguous parcels can be combined for regulatory takings analysis under Penn Central Transportation Co. v. New York City’s “parcel as a whole” concept.

Now let’s move on to our newcomers. If you paid close attention to our special guest Bing, you already know the three cases, although we caution that it’s even harder to discern the status of newcomers from an unchanged docket than it is with cases that have been relisted before. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority, 15-141, wins the award for longest caption. It involves an attempt by AFDI to post ads on the advertising space of the Boston area’s transit system. The ads consist of such warm holiday greetings as, “[i]n any war between the civilized man and the savage, support the civilized man. Defeat violent jihad. Support Israel.” (Actually a modification of an Ayn Rand quote.) The MBTA (which is way less pronounceable than AFDI) rejected the ads even though it had previously run pro-Palestinian ads. A district court denied AFDI’s petition for a preliminary injunction, and a divided First Circuit affirmed. The AFDI’s petition asks (1) whether the MBTA created a public forum by accepting ads and thus violated the First Amendment by rejecting AFDI’s ad based on content and (2) whether the MBTA’s rejection was an unconstitutional viewpoint-based restriction of speech.

AT&T, Inc. v. United States ex rel. Heath, 15-363, seeks to be the second False Claims Act case granted this Term. The relator in this case alleged that AT&T failed to offer schools and libraries participating in the federally established E-Rate Program the “lowest corresponding price” for services as required by federal regulations. The complaint claimed that for over a decade, every one of the government forms AT&T and its subsidiaries submitted annually certifying compliance (and every corresponding form recipients of AT&T’s services submitted) was false. AT&T moved to dismiss, arguing that the relator failed to comply with Rule 9(b) of the Federal Rules of Civil Procedure by not stating specific facts regarding at least one allegedly false or fraudulent claim submitted to the government. The D.C. Circuit rejected that argument, joining (by petitioner’s count) six other circuits in holding that a complaint that describes a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted satisfies Rule 9(b). AT&T argues that four other circuits have required pleading details of at least one claim alleged to be false or fraudulent.

The final gift under the relist tree is a handwritten pro se petition, Ben-Levi v. Brown, 14-10186. Israel Ben-Levi (also known to as Danny L. Loren) is incarcerated in the North Carolina prison system – if his petition is any indication, for an aggravated felony involving horrible penmanship. He asked to use a quiet room in which to conduct a “Jewish bible study” with two other inmates. Prison chaplain Betty Brown researched the practices of the Jewish faith and consulted with a rabbi, then denied Ben-Levi’s request on the grounds that, according to the practices of the Jewish faith, study of the Talmud requires a quorum of ten adult Jewish males (a minyan) or a qualified teacher (a rabbi). Ben-Levi sued under Section 1983 and the Religious Land Use and Institutionalized Persons Act, alleging a violation of his free-exercise rights under the First and Fourteenth Amendments. The district court denied his claims and the Fourth Circuit affirmed without even asking North Carolina to file a reply. Over the summer, the Justices reviewed Ben-Levi’s petition and, after weeping softly about the calligraphic atrocity it represented, ordered North Carolina to respond. It’s a shame Chaplain Akbar was dismissed from this case early on: He surely would have warned Ms. Brown that the Court would want a second look. (Did you really think we could pass up a Star Wars reference this week?)

That’s all we got. Enjoy your holiday traditions and some well-deserved time off. We will see you in 2016.

Thanks to Stephen Gilstrap for compiling the list and Dmitry Slavin for annoying his neighbors by singing out loud in his office while drafting this update.

Issue(s): (1) Whether the Louisiana courts erred in failing to find that the State’s failure to disclose exculpatory evidence violated its obligation under Brady v. Maryland and that this failure prejudiced the defense; and (2) whether the Louisiana courts erred in failing to find that petitioner’s sole attorney provided ineffective representation at the guilt phase of trial under Strickland v. Washington.

(relisted after the November 13, November 24, December 4, and December 11 Conferences)

Issue(s): (1) Whether a stun gun is an “arm” within the meaning of the Second Amendment, and (2) whether Massachusetts’s blanket prohibition on the possession of stun guns infringes the right of the people to keep and bear arms in violation of the Second and Fourteenth Amendments.

(relisted after the November 13, November 24, December 4, and December 11 Conferences)

Issue(s): (1) Whether the Ninth Circuit’s judgment in this case should be granted, vacated, and remanded in light of Horne v. Department of Agriculture, and (2) whether the California Unclaimed Property Law violates the Due Process Clause of the Fourteenth Amendment because it deprives owners of their property without affording constitutionally adequate notice.

(relisted after the November 13, November 24, December 4, and December 11 Conferences)

Issue(s): Whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes.

(relisted after the November 24, December 4, and December 11 Conferences)

Issue(s): (1) Whether the Massachusetts Bay Transportation Authority (MBTA) created a public forum by accepting for display on its property a wide array of controversial political and public-issue ads, including ads that address the same controversial subject matter as petitioners’ pro-Israel ad, and thus violated the First Amendment by rejecting petitioners’ ad based on its content; and (2) regardless of the nature of the forum, whether the MBTA’s rejection of petitioners’ advertisement based on an advertising guideline that prohibits ads considered by MBTA officials to be “demeaning and disparaging” was a viewpoint-based restriction of speech in violation of the First Amendment.

Issue(s): Whether the Fourth Circuit erred in affirming the denial of relief on the inmate petitioner's complaint alleging that the prison discriminated against him in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act by refusing to permit him to organize a Jewish Bible study group.

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Air and Liquid Systems Corp. v. DeVries In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.